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Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
Minnesota High School Mock Trial 2007:State of Felonia
v.W81925 Oxford Road
A First Look
Kyle J. KaiserWinthrop & Weinstine, P.A.
Minneapolis, MN1
Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
Defining Civil Forfeiture Identifying Unique Aspects of
Civil Forfeiture Litigation Applying Concepts to State v.
W81925 Oxford Road Other Unique Aspects of State v.
W81925 Oxford Road Questions
State v. W81925 Oxford RoadState v. W81925 Oxford Road
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Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Civil Forfeiture???
Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Civil Forfeiture???
Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Civil ForfeitureIt may be frightening…
It may be unfamiliar…
But it is
Important!Important!
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Civil Forfeiture is Important Because It is regularly used.
In 2000, State Highway Patrols recovered more than $212 Million in drug forfeitures.
In 2006, $703 Million was recovered by United States Attorneys through asset forfeiture.
(Source: Bureau of Justice Statistics, Criminal Sourcebook of Criminal Justice Statistics Online (2006 ed.); Bureau of Justice Statistics, Law Enforcement Management and Administrative Statistics (LEMAS), (2000)
The U.S. Customs Service seizes and forfeits billions annually.
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Civil Forfeiture is Important Because It can have serious consequences above and
beyond a criminal conviction. See, e.g., United States v. Dodge Caravan SE /
Sport Van, 387 F.3d 758 (8th Cir. 2004) Mrs. Clemons, a van owner, used van to pick
up phony prescriptions for hydrocodone using one pharmacy’s drive-up window.
Pleaded guilty to possession of controlled substance by fraud under Nebraska state law.
Federal Government sought to forfeit her automobile, as the vehicle “facilitated” the commission of the offense.
Eighth Circuit held that forfeiture was proper; sending back on secondary issue.
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Forfeiture of property may be more of a “penalty” than the punishment issued in a criminal case
Forfeiture of property may be more of a “penalty” than the punishment issued in a criminal case
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What Is Civil Forfeiture?
“The divestiture without compensation of property used in a manner contrary to the laws of the sovereign.”
United States v. Eight Rhodesian Statues, 449 F. Supp. 193, 195 (C.D. Cal. 1978))
The confiscation of property because it has been used in violation of the law or because it is the fruit of illegal conduct.
(United States v. Ursery, 518 U.S. 267, 284 (1996))
State v. W81925 Oxford Road:Defining Civil Forfeiture
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What Is Civil Forfeiture? A civil action brought by a
governmental entity to acquire property, money or chattels (things) forfeitable pursuant to statute.
Property, money, or chattels are kept, destroyed, or sold, and the money is kept by the Government and used for a variety of purposes.
Victims’ compensation, police investigation expenses, etc.
Money creates incentives for forfeiture.
State v. W81925 Oxford Road:Defining Civil Forfeiture
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In Minnesota:
70% to seizing agency
20% to county attorney
10% to State’s general fund
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What Is Civil Forfeiture? Action is usually in rem.
Latin: “Against a thing.” Defendant is the property under the
legal fiction that it is “guilty.” Interested parties (“Claimants”) may
file to recover their interest, or prove the property (res) is not forfeitable.
State v. W81925 Oxford Road:Defining Civil Forfeiture
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What Property Is Forfeitable?
(i.e. Why is the property “guilty”?) Contraband (controlled substances,
precursors, etc.) Proceeds of illegal activity (or
property traceable thereto). Property that was used, intended for
use, or facilitated, illegal activity.
See, e.g., Minn. Stat. § 609.5311 (controlled substances); 18 U.S.C. § 981 (general, financial crimes); 21 U.S.C. § 881 (controlled substances)
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Most
Contentious!
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Are there other methods of forfeiting property?
Administrative Forfeiture Criminal Forfeiture Other Types of Civil Forfeiture
(Minn. Stat. § 609.5314; Minn. Stat. § 169A.63; Minn. Stat. § 609.5312)
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Who Are the Parties in a Civil Forfeiture Action?
The Plaintiff Government The Defendant Property (Fiction) Claimants
People who have a legal interest in the property
Owners, lienholders, other governments / agencies, future interest holders, banks, relatives….
“Innocent Owners”
State v. W81925 Oxford Road:Defining Civil Forfeiture
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What Is a Typical Procedure for a Civil Forfeiture Action?
The Government files a civil complaint against the defendant property.
The Government seizes the property or provides notice.
The action is served/published on those who may have an interest.
Claimants answer the Complaint. The case is litigated like any other
civil action.
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
What does the Government have to prove to win its case?
(Jurisdiction, Venue, Statutory Formalities Complied with)
Property: Is Contraband Constitutes proceeds of illegal activity
(or traceable thereto) Facilitated, in whole or in part, the
exchange of contraband *
Value of Goods / Underlying Crime Not unconstitutional?
State v. W81925 Oxford Road:Defining Civil Forfeiture
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What can a claimant do to win? Disprove the Government’s prima
facie case Prove an affirmative defense
Excessive Fine Cruel and Unusual Punishment Double Jeopardy Innocent Owner Statute of limitations
State v. W81925 Oxford Road:Defining Civil Forfeiture
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Applying Civil ForfeitureRules
to State v. W81925 Oxford
Road
State v. W81925 Oxford Road:
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Plaintiff: State of Felonia Defendant:
Real Property Located at W81925 Oxford Road
[A/k/a Red Fairfield’s House]
Claimants: Jefferson Bank, N.A.
Mortgage Severed from Case
Red Fairfield Owner of Property In prison
State v. W81925 Oxford Road:Applying the Rules
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Witnesses Government
Kelly Just – Officer Darby Flook – Snitch Jo Staid – Accountant
Claimant Red Fairfield – Claimant Pat Little – Roommate Kim Rodriguez -- Counselor
State v. W81925 Oxford Road:Applying the Rules
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Plaintiff’s Burden Clear and Convincing Evidence Retail value of controlled substance
exceeds $1,000. Property used or facilitated the
exchanging of contraband or a controlled substance.
Not unconstitutional? *
Defendant’s Burden * No clear and convincing evidence Unconstitutional
State v. W81925 Oxford Road:Applying the Rules
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Was the Marijuana Brick Inside Red Fairfield’s House?
(Does it matter?) Does the sale to Flook make the
property forfeit? How Does Red’s History Affect
Red’s credibility? Red’s drug dealing? Red’s protection of the brick?
Jo Staid’s Evidence
State v. W81925 Oxford Road:Applying the Rules
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Strategies:Plaintiff
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Where’s the “Clear and Convincing Evidence…” That the brick was in the house? That this wasn’t just a one time deal?
Statute of Limitations This isn’t (Constitutionally) Fair!
Elements Statutory minimum and maximum fine that
may be imposed for the underlying criminal act
Value of property to be forfeited Strength of the nexus between underlying
criminal act and property Any other factors
Punished enough Vengeful Officer House was clean.
State v. W81925 Oxford Road:Applying the Rules
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Strategies:Defense
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Terminology Get past the funny terms Plan to educate your judges, who may have
never heard of civil forfeiture.
Case BalanceThere is always a question about whether the case is balanced. This case should be dependent upon the credibility of each witness. Because of the flexible legal standards to be applied, there will be some judges who say “the drugs were on the property; that means it’s forfeit” and others who say “even if the drugs were inside, that had nothing to do with the drug transaction for which Fairfield was arrested, so the house is not forfeit.”
State v. W81925 Oxford Road:Case QuirksCase Quirks
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Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
Volume of Information Is Red Fairfield’s Criminal
History Relevant? Kelly Just’s? All months of Fairfield’s bank
statements? Character of Each Witness (403,
404, 607, 608, 609)?
State v. W81925 Oxford Road:Case QuirksCase Quirks
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Suite 3500 | 225 South Sixth Street | Minneapolis, MN 55402 | Main:(612)604-6400 | Fax:(612)604-6800 | www.winthrop.com
THANK YOU!
Kyle J. Kaiser
Associate
Winthrop & Weinstine, P.A.
225 South Sixth Street, Suite 3500
Minneapolis, MN 55402
(612) 604-6585
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